Full opinion text
FINDINGS OF FACT AND CONCLUSIONS OF LAW ACOSTA, District Judge. INTRODUCTION Plaintiff, the United States of America, on behalf of the United States Environmental Protection Agency (“EPA”) instituted this suit involving two sites, the J & G Site in Vega Alta, Puerto Rico, and the Cataño facility in Cataño, Puerto Rico. With respect to the J & G Site, the United States claims as follows: (a) Claim for cost recovery under Section 107(a) of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9607(a) (hereinafter “CERCLA”), for the costs of actions the United States has taken in response to the release or threatened release of CERCLA hazardous substances at the J & G Site; (b) Several claims for failure to comply with a statutory provision of and regulations promulgated under the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C. § 6901, et seq., for which the United States seeks injunctive relief in the form of continuation post-trial of the provisions of paragraph 2 of the Stipulation endorsed by the Court on January 31, 2003 herein (docket #84) and civil penalties pursuant to Section 3008 of RCRA, 42 U.S.C. § 6928; and (c) Claim for civil penalties under Section 104(e) of CERCLA, 42 U.S.C. § 9604(e), for failure to comply with the EPA Administrative Order requesting access for sampling and investigative activities. With respect to the Cataño facility, the United States’ claim is for injunctive relief and civil penalties under Section 3008 of RCRA, for failure to respond to an EPA information request pursuant to Section 3007 of RCRA, 42 U.S.C. § 6927. TABLE OF CONTENTS I. FINDINGS OF FACT.20 A. Defendant Jorge Ortiz.20 B. J&- 1. Location. to 2. Manufacturing Operations. to C. Cataño Facility . to 1. Location. to 2. Facilities. to D. Defendant Jorge Ortiz’ Companies. to 1. JG-24, Inc. (“JG-24”). to a. Incorporation. to b. JG-24 Has Not Been Operated As a Corporation. to c. JG-24 Lost Its Corporate Status and is a Proprietorship .... to d. Jorge Ortiz is the Proprietor and Person in Control of JG-24 to 2. Distribuidora K-Aribe /D.T. Karibe, Inc. to a. Incorporation. to b. Distribuidora K-Aribe Has Not Been Operated As a Corporation to c. Distribuidora K-Aribe/D.T. Karibe’s Corporate Status Expired . to d. Distribuidora K-Aribe is a Proprietorship and Jorge Ortiz is the Proprietor. to ^ 3. Fiberglass DuraMas/Dura Mas. to Oi a. Incorporation. to 05 b. Fiberglass Dura Mas Has Not Been Operated As a Corporation to Q c. Fiberglass Dura Mas Is Not a Corporation. to <1 d. Fiberglass Dura Mas is a Proprietorship and Jorge Ortiz is the Proprietor. to -3 4. Jorge Ortiz’ Companies are Commingled and Linked. to CO E. Facts Relating to United States’ Claims re J & G Site. co O 1. Ownership of the J & G Site . co O 2. December 3,1997 Inspection. co O 3. February 1998 Initial Sampling and Inspection. co 5. April 1999 Sampling Investigation .33 a. Site Conditions.33 b. Site Practices .34 c. Chemicals Used .34 d. Releases and Threatened Releases.35 e. Sample Results — Superfund Support Team Sampling Report.36 f. Soil Boring Results .37 g. Attempt to Sample Local Groundwater.38 6. Decision to Conduct Removal Action.38 7. March 2000 Overflight.39 8. May/June 2000 Inspection .39 9. Access and Cease and Desist Stipulation.40 10. RCRA Violations.40 11. Removal Action .43 12. Groundwater monitoring.44 13. Costs .45 14. In Rem Claim Facts .52 15. Injunctive Stipulation.53 F. Facts Relating to United States’ Claim re Cataño Facility Ü1 1. Ownership of the Cataño Property. 2. Chemicals Stored and Used at the Cataño Facility .. 3. Current Fiberglass Product Manufacturing at the Cataño Jorge Ortiz.. cn 4. Inspections and RCRA Information Request. ci Ü1 5. Control Over Environmental Decisionmaking at CONCLUSIONS OF LAW.59 Defendants are Liable for the United States Costs under CERCLA Relating to the J & G Site .59 Defendants are Liable for Violations of RCRA at the J & G Site.67 Defendants are Liable for Failure to Provide Access to the J & G Site.71 Defendants Jorge Ortiz and Duramas are Liable for Failure to Respond to RCRA Information Request Concerning the Cataño Facility.72 FINDINGS OF FACT A. Defendant Jorge Ortiz 1. Defendant Jorge Ortiz’ middle name is Joaquin, and his surname from the maternal side is Romany. (Stipulated Fact No. 4) 2. Defendant Jorge Ortiz’ Social Security Number is [ XXX-XX-XXXX ]. (Stipulated Fact No. 22,6) 3. Defendant Jorge Ortiz’ address is Calle Diez de Andino 111, Santurce, PR. (Plaintiff Exh. 176, p. 8; Stipulated Fact No. 238) B. J&GSite 1. Location 4. The J & G Site is approximately 40 acres in size and is located at PR Road # 675, Km. 4.0, Barrio Bajuras, Sector Los Chorros, Vega Alta, Puerto Rico. (Stipulated Fact No. 7) 2. Manufacturing Operations 5. Fiberglass products were made at the J & G Site. The operations involved fiberglass, solvents, resins, and catalysts, and also acetone, styrene and methyl ethyl ketone peroxide. (Stipulated Fact No. 235) 6. Acetone, styrene, and methyl ethyl ke-tone peroxide are CERCLA hazardous substances. (Michael Ferriola Direct and Michael Mercado Direct testimony; 40 C.F.R. § 302.4) 7. The fiberglass product manufacturing operations at the J & G Site began in approximately 1992 and continued through at least July 2000 (when the Answer to the initial Complaint in this action was filed). Defendant JG-24 used the J & G Site to manufacture fiberglass products such as swimming pools, water tanks, boats, and horse carriages. (Answer, ¶ 11, and Complaint, ¶ 11, Plaintiff Exh. Exhibit 14, p. 2.) 8. Jorge J. Ortiz personally went to the supplier or suppliers to buy materials including resins, solvents, and catalysts used in the production at the J & G Site and took them personally to the J & G Site. The usual procedure was to buy these materials using cash. The quantities of the materials used depended on the demand for finished products (boats, water tanks, car tops, swimming pools, etc.). (Stipulated Fact No. 10) 9. During the manufacture of fiberglass products at the J & G Site, the operations at the Site included molding, cutting and finishing various fiberglass products. The manufacturing procedure included the following steps: 1) preparing the mold for the specific product; 2) spreading a first layer of resin solution over the molding and covering it with fiberglass; 3) the fiberglass layer is dried in the mold, and additional layers of resin solution are spread to get the appropriate thickness. (Stipulated Fact No. 11) 10. The manufacture of fiberglass products at the J & G Site involved the spraying of resins on products being made. Gelcoat was also sprayed on some products being made, such as pools and car tops. The pools were painted with blue gelcoat, and the car tops were painted with white gelcoat. (Alberto Mendez Deposition Excerpt, p. 42, lines 23-25, p. 43, In. 1-25, p. 44, In. 1-10, 16-25, p. 45, lines 1-3, admitted into evidence through grant of the Motion Designating Deposition Excerpts; Michael Mercado Direct testimony) C. Cataño Facility 1. Location 11. There is a property of approximately two (2) acres in size that is located at PR Road 165, Km. 2.5, Cataño, Puer-to Rico 00963 (the “Cataño property” or “Cataño facility” or “Distribuidora K-Aribe facility”). (Stipulated Fact No. 8) 2. Facilities 12. The Cataño property includes a showroom for fiberglass products, a sales area, and an administrative office. (Stipulated Fact No. 122) 13. The Cataño facility also includes a mixing room in which transfer activities of raw materials from bulk to smaller containers are performed. The Cataño facility also includes a backyard area. Some fiberglass products are sometimes manufactured in the backyard area. (Plaintiff Exh. 119) 14. Signs have been posted at the Cataño facility at various times, including 1997, with the names “Distribuidora KAribe” and “DuraMas.” (Francisco Claudio Direct testimony) D. Defendant Jorge Ortiz’ Companies 1. Defendant JG-24, Inc. (“JG-24”) a. Incorporation 15. Defendant JG-24, Inc. (“JG-24”) was at one point a corporation incorporated under the laws of the Commonwealth of Puerto Rico, and JG-24 has had a principal place of business at the J & G Site. (Stipulated Fact No. 1) 16. Defendant Jorge Ortiz was one of the incorporators of JG-24, Inc. (Stipulated Fact No. 5) 17. JG-24, Inc. was incorporated by Jorge J. Ortiz, Yanette Maldonado, and Francisco Vizcaino. (Stipulated Fact No. 210) 18. The incorporation papers for JG-24, Inc. list Yanette Maldonado as the registered agent for JG-24, Inc. The incorporation papers for JG-24, Inc. state that her address is Carr. 860, Lizette Apt. # 906, Carolina, P.R. 00630. No change to the registered agent for JG-24, Inc. or the address of the registered agent for JG-24, Inc. has been filed with the Secretary of State’s office. (Stipulated Facts No. 211, 212) b. JG-2I Has Not Been Operated As a Corporation 19. To the best of the knowledge of Jorge Ortiz, no stock was ever issued by JG-24, Inc. (Stipulated Fact No. 244) 20. JG-24 never issued any bylaws. (Stipulated Fact No. 213) 21. There are no such things as minutes, meetings of Board of Directors, or shareholders regarding JG-24, Inc. (Stipulated Fact No. 214) 22. JG-24 does not have directors or a board of directors. (Stipulated Fact No. 215) 23. To the best of the knowledge of Jorge Ortiz, no annual (or other periodic) reports of JG-24, Inc. exist for any times between 1990 and the present. (Stipulated Fact No. 245) 24. There is no record of any annual reports required to be filed by corporations having been filed by JG-24, Inc. with the office of the Secretary of State of Puerto Rico. (Stipulated Fact No. 219) 25. There is no record of any annual fees required to be paid by corporations having been paid by JG-24, Inc, to the office of the Secretary of State of Puerto Rico. (Stipulated Fact No. 220) c.JG-2I Lost Its Corporate Status and is a Proprietorship 26. There is a letter from the Secretary of State’s office, dated December 8, 1999, on file at the Secretary of State’s office, addressed to Yanette Maldonado, the registered agent for JG-24, at her address as listed in the incorporation papers, which states that JG-24 has failed to file more than two years of annual reports and that if such annual reports are not filed within 60 days, JG-24 will be canceled. No annual reports were filed after the date of this letter. (Stipulated Fact Nos. 220, 221; Plaintiff Exh. 184; Reinaldo Cestero Direct testimony) 27. There is a certifícate from the Secretary of States’s office of Puerto Rico stating that JG-24, Inc.’s corporate status was cancelled on February 8, 2000. (Reinaldo Cestero Direct testimony; Plaintiff Exh. 236) d. Jorge Ortiz is the Proprietor and Person in Control of JG-2i 28. Defendant Jorge Ortiz has represented himself to be the “President” of JG-24. (Answer, ¶ 9), in excerpt of Answer to initial Complaint (admitted into evidence through grant of Motion Designating Deposition Excerpts”) 29. Jorge Ortiz decided what products were to be manufactured at the JG-24 facility. (Alberto Mendez Deposition excerpt, p. 33, lines 15-17) 30. The JG-24 workers took directions from Jorge Ortiz, and there were no other supervisors who gave work instructions at the JG-24 facility other than Jorge Ortiz. (Alberto Mendez Deposition excerpt, p. 22, lines 22-25 through p. 23, lines 1-7) 31. Jorge Ortiz hired workers for JG-24. For instance, Jorge Ortiz hired Alberto Mendez and Carmelo Mejia. Carmelo Mejia worked at the J & G Site, making fiberglass tanks and swimming pools, starting in 1997 or 1998. Carmelo Mejia continues to work for Jorge Ortiz. He works on construction projects along with Alberto Mendez. (Stipulated Fact Nos. 109-111, 118-121) 32. Efrain Vazquez worked for Jorge Ortiz at the J & G Site between approximately 1990 and 2000. Efrain Vazquez continues to work for Jorge Ortiz in construction and did such work in 2000-2003. Efrain Vazquez understood Jorge Ortiz to be the person in charge of JG-24. (Stipulated Fact Nos. 115,116,117) 33. There is a bank account in the BBVA with account number 061-1110005698 in the name of J & G 24 Corp. This account was 061-6194-206 when it was opened. It was opened with Royal Bank of Puerto Rico. BBVA is the successor of Royal Bank de Puer-to Rico. (Stipulated Fact No. 216) 34. The card on file with BBVA stating the names of the holders of the BBVA account with the title of J & G 24 Corp. list two holders. One holder ■ is listed as J & G 24 Corp. The other holder is listed as Jorge Ortiz Romany. (Stipulated Fact No. 217) - 35. Jorge Ortiz Romany is the only individual authorized to control BBVA account number 061-1110005698. Although the account is in the name of J & G 24 Corp., it is a joint or commingled account of the two holders. (Plaintiff Exhs. 144, 147, 148) 36. BBVA produced checks written on this account of $1,000 or more in 2001-2003. All of the checks produced are signed by Jorge J. Ortiz. (Stipulated Fact No. 218; Plaintiff Exhs. 154,157) 37. Defendant Jorge Ortiz is the proprietor of JG-24, which is no longer a corporation. 38. When JG-24 had corporate status, Jorge Ortiz was the alter ego of that corporation, Which was not operated as a corporation. 2. Distribuidora K-Aribe /D.T. Kar-ibe, Inc. a. Incorporation 39. The Secretary of State’s office has a record of a company called D.T. Kar-ibe, Inc. (Stipulated Fact No. 192) 40. The incorporation papers for D.T. Karibe, Inc:, were signed in 1992 by Carlos Capre Martinez, Frank Hi-chez, and Pedro Santiago Andino. (Stipulated Fact No. 193) 41. Carlos Capre Martinez was employed up to 1994 with different enterprises related to Jorge Ortiz. Carlos Capre Martinez was a salesman at the Cata-ño property until 1994. (Stipulated Fact Nos. 194,196) 42. Jorge Ortiz asked Carlos Capre Martinez to sign the incorporation papers for D.T. Karibe, Inc. (Stipulated Fact No. 195) 43. When Carlos Capre Martinez worked at the Cataño property, Frank Hichez did handyman and mechanic work at the Cataño property. (Stipulated Fact No. 197) b.Distribuidora K-Aribe Has Not Been Operated As a Corporation 44. No stocks were ever issued by Distri-buidora K-Aribe (D.T.Karibe, Inc.), and Distribuidora K-Aribe does not have stockholders or stockholders’ ■ meetings. (Stipulated Fact Nos. 198, 242). 45. Distribuidora K-Aribe (D.T.Karibe, Inc.) never issued bylaws. (Stipulated Fact No. 199) 46. No documents, including but not limited to minutes, concerning meetings of the board of directors and/or meeting of the shareholders of Distribui-dora K-Aribe at any times between the time of incorporation and the present exist. (Stipulated Fact No. 200) 47. Distribuidora K-Aribe does not have any Board of Directors or officers, such as a president or a secretary. (Stipulated Fact No. 224, 243) 48. There is no record of any annual reports (filed by corporations) having been filed by D.T. Karibe, Inc. with the office of the Secretary of State of Puerto Rico. (Stipulated Fact No. 201) 49. There is no record of any annual fees required to be paid by corporations having been paid by D.T. Karibe Inc. to the office of the Secretary of State of Puerto Rico. (Stipulated Fact No. 202) 50. No annual (or other periodic) reports of Distribuidora K-Aribe (D.T.Kar-ibe, Inc.) exist for any times between 1990 and the present. (Stipulated Fact No. 203) c. Distribuidora K-Aribe/D.T. Karibe’s Corporate Status Expired 51. D. T. Karibe’s (Distribuidora K-Ar-ibe’s) 1992 incorporation papers provide that D.T. Karibe was incorporated for a period of two years. There are no certificates of renewal on file at the Puerto Rico Secretary of State’s office of D.T. Karibe as a corporation. (Reinaldo Cestero Direct testimony; Plaintiff Exh. 224, p. 2, Article 6; 14 L.P.R.A. § 3102 (temporary corporations expire at the end of their term unless certificate of renewal is filed with the office of the Secretary of State prior to the end of the term and other conditions are met)) d. Distribuidora K-Aribe is a Proprietorship and Jorge Ortiz is the Proprietor 52. Jorge Ortiz has been dealing with the operation at the Cataño facility since 1986 (more or less). (Plaintiff Exh. 176, p. 5; Francisco Claudio Direct testimony) 53. On December 3, 1997, EPA inspectors Francisco Claudio Rios and Eduardo Gonzalez visited the Cataño facility. There were two ladies who appeared to be sales persons who identified themselves as Gloria Alvarez and Rodes [Rothes] Gonzalez. On December 3, 1997, Rodes [Rothes] Gonzalez told the EPA inspectors that “Joaquin Román” was the manager and was in charge and that he will answer any question. (Francisco Claudio Direct testimony, Plaintiff Exh. 121) 54. Jorge Ortiz visited the Distribuidora K-Aribe facility periodically. When Jorge Ortiz visited the facility he used one of the offices. (Betzaida (“Betsy”) Ortiz Direct testimony; Stipulated Fact No. 133) 55. Jorge Ortiz has been involved with purchasing products that are to be sold at Distribuidora K-Aribe. (Stipulated Fact No. 132) 56. Jorge Ortiz has interviewed people seeking jobs with Distribuidora K-Aribe. Jorge Ortiz has offered employment to people seeking jobs at Distribuidora K-Aribe. (Betsy Ortiz Direct testimony) 57. Jorge Ortiz supervised Betsy Ortiz. He supervised all the employees at Distribuidora K-Aribe. If Jorge Ortiz asked employees at Distribuidora K-Aribe to do something, they followed his directions. (Betsy Ortiz Direct testimony) 58. Distribuidora K-Aribe employees were paid by check. Jorge Ortiz signed the pay checks for the Distri-buidora K-Aribe employees. (Stipulated Fact No. 134; Betsy Ortiz Direct testimony) 59. Sometimes Distribuidora K-Aribe had to return money to a customer or client, if the client returned something he purchased. When Distribui-dora K-Aribe paid the money back for returned items with a check, the check was signed by Jorge Ortiz. (Stipulated Fact No. 137; Betsy Ortiz Direct testimony; Plaintiff Exh. 98) 60. Betsy Ortiz, an employee at the Cata-ño facility for over five years, says that Jorge Ortiz is the manager in overall control of Distribuidora K-Aribe. (Stipulation No. 236; Betsy Ortiz Direct testimony) 61. Distribuidora K-Aribe uses a checking account in the Banco Bilbao Viz-caya (“BBVA”) number 061-1060007300. (Stipulated Fact No. 135) 62. Jorge Ortiz is entitled to write checks and withdraw money from the Account of Distribuidora K-Aribe at the Banco Bilbao Vizcaya. (Stipulated Fact No. 227) 63. Jorge Ortiz signs the checks to pay the invoices for materials purchased by Distribuidora K-Aribe. (Stipulated Fact No. 136) 64. On occasion, Jorge Ortiz receives checks made out to him personally. Sometimes the checks made out to Jorge Ortiz personally were deposited into the Distribuidora K-Aribe account. (Stipulated Fact Nos. 138, 139; Plaintiff Exh. 100). 65. Jorge Ortiz has the authority to withdraw money from Distribuidora K-Aribe bank accounts. (Stipulated Fact No. 140) 66. The signature card for BBVA account number 061-1060007300 says that the title of the account is DT Karibe. (Stipulated Fact No. 204) 67. There are two holders listed on the signature card for BBVA account number 061-1060007300. One holder is listed as DT Karibe. The other holder is listed as Jorge Ortiz Romany. (Stipulated Fact No. 205) 68. Jorge Ortiz Romany is the only individual named as authorized to control BBVA account number ' 061-1060007300. Although the account is in the name of DT Karibe, it is a joint or commingled account of the two holders. (Plaintiff Exh. 148) 69. Jorge J. Ortiz signs checks on the DT Karibe BBVA account number 061-1060007300. (Stipulated Fact No. 206) 70. Jorge J. Ortiz made payments to an attorney, Benjamin Ortiz, in July 2000 and on other dates, through checks issued on the account of DT Karibe BBVA account 061-1060007300. (Stipulated Fact No. 207; Plaintiff Exh. 155, e.g. pp. BBV 0219, BBV 0455) 71. Checks made out to Jorge Ortiz have been deposited into the Distribuidora K-Aribe account (DT Karibe BBVA account number 061-1060007300). (Stipulated Fact No. 208) 72. Jorge J. Ortiz signs checks for condominium fees for his companion Gloria Alvarez Nieves’ apartment issued on the account of DT Karibe BBV account 061-1060007300. (Plaintiff Exh. 158, e.g., p. BBV 1114) 73. BBVA produced checks of $1,000 or over on DT Karibe account number 061-1060007300 in 2001-2003. These checks are all signed by Jorge J. Ortiz. (Stipulated Fact No. 209; Plaintiff Exhs. 155,158). 74. Defendant Jorge Ortiz is the proprietor of Distribuidora K-Aribe, which is no longer a corporation. 3. Fiberglass Dura Mas/Dura Mas a. Incorporation 75. There are no incorporation papers for Fiberglass Dura Mas available at the Secretary of State’s Office. (Stipulated Fact No. 178) 76. Banco Popular has a copy of the incorporation papers for Fiberglass Dura Mas on file. (Stipulated Fact No. 176; Plaintiff Exh. 140) 77. The incorporation papers for Fiberglass Dura Mas, Inc. on file with Banco Popular indicate that it was incorporated in 1976 by three incorpo-rators. Jorge J. Ortiz was one of the incorporators and owned 13 out of the 15 shares of stock. (Plaintiff Exh. 140, p. 2; Stipulated Fact No. 177) 78. The incorporation papers for Fiberglass Dura Mas on file with Banco Popular indicate that it was originally incorporated under a different name, which is scratched out and changed in handwriting to Fiberglass Dura Mas. with the handwritten change made by Jorge J. Ortiz. (Plaintiff Exh. 140, p. 1 (original Spanish version)) b. Fiberglass Dura Mas Has Not Been Operated As a Corporation 79. Fiberglass Dura Mas, Inc., has not filed annual reports with the Secretary of State of Puerto Rico that are required of corporations. (Stipulated Fact No. 179) 80. Fiberglass Dura Mas, Inc, has not paid annual fees to the Secretary of State of Puerto Rico that are required of corporations. (Stipulated Fact No. 180) 81. There are no annual (or other periodic) reports of Fiberglass Dura Mas, Inc. and/or Dura Mas. (Stipulated Fact No. 181) 82. Fiberglass. Dura Mas does not have any bylaws. (Stipulated Fact No. 182) 83. There are no documents, including but not limited to minutes, concerning meetings of the board of directors and/or shareholders of Fiberglass Dura Mas, Inc., and/or Dura Mas at any times between the time of incorporation and the present available. (Stipulated Fact No. 183) 84. Fiberglass Dura Mas, Inc, does not currently have directors or board of directors, has not had a board of directors for many years, has not held board of director meetings for many years, and has not prepared minutes of board of directors meetings ever. (Stipulated Fact No. 184) 85. There are no financial statements, including but not limited to balance sheets, income statements, and/or profit and loss statements, of Fiberglass Dura Mas at any times between 1990 and the present. (Stipulated Fact No. 185) 86. There are no income tax returns, including but not limited to Puerto Rico income tax returns, filed on behalf of Fiberglass Dura Mas, Inc., and/or Dura Mas between 1990 and the present. (Stipulated Fact No. 186) 87. Fiberglass Dura Mas, Inc. does not currently have any shareholders. (Stipulated Fact No. 191) c. Fiberglass Dura Mas Is Not a Corporation 88. Dura Mas, or Fiberglass Dura Mas, does not exist as a corporation. (Stipulated Fact No. 189) d. Fiberglass Dura Mas is a Proprietorship and Jorge Ortiz is the Proprietor 89. In the Puerto Rico Telephone/Verizon Area Metro 2002-2003 and 2003-2004 telephone books, white pages, commercial section, there is a listing under the name of “Dura Mas Tan-ques/Fiberglass” at the address of the Cataño facility. There is no listing of Distribuidora K-Aribe. (Plaintiff Exh. 127; Reinaldo Cestero Direct testimony; judicial notice) 90. In the Puerto Rico Telephone/Verizon Area Metro 2002-2003 and 2003-2004 telephone book, yellow pages, there is a listing under the heading of Fiberglass/Products of the name “Dura Mas” at the address of the Cataño facility. There is no listing of Distri-buidora K-Aribe. (Plaintiff Exh. 127; Reinaldo Cestero Direct testimony; judicial notice) 91. Customers write checks to Dura Mas. (Jorge Ortiz Deposition Excerpt, Deposition, Exhibit 15, p. 2, third check (admitted into evidence by grant of the Motion Designating Deposition Excerpts); Stipulated Fact No. 237) 92. Invoices for equipment and materials purchased are sometimes addressed to Dura Mas Fiberglass. (Plaintiff Exh. 88 (last twelve pages, invoices from Land ‘n’ Sea Distributing, Inc., year 2003); Betsy Ortiz Direct Testimony) 93. Dura Mas received an invoice for seminar materials Jorge Ortiz ordered in April 2000. (Plaintiff Exh. 108) 94. There is a bank account number 170-001555 in the Banco Popular of Puer-to Rico, Levittown branch, under the name Dura Fiberglass Dura Mas. (Stipulated Fact No. 164) 95. The authorized signature card on file for Banco Popular 170-001555 account has one signature, that of Jorge J. Ortiz. (Stipulated Fact No. 165; Plaintiff Exh. 136) 96. The agreement under which Banco Popular 170-001555 account is opened is signed on June 12,1986 by Jorge J. Ortiz, and Jorge J. Ortiz has been authorized to sign checks on that account since 1986. (Plaintiff Exh. 137; Stipulated Fact No. 168) 97. Banco Popular has on file a certificate of resolution by Fiberglass Dura Mas, dated in Cataño, Puerto Rico, in 1986 authorizing only the signatory Jorge J. Ortiz to access the Fiberglass Dura Mas account. (Stipulated Fact No. 166; Plaintiff Exh. 138) 98. The certificate of resolution by Fiberglass Dura Mas, dated in Cataño, Puerto Rico, in 1986, on file with Ban-co Popular, authorizing only Jorge J. Ortiz to sign checks for Fiberglass Dura Mas, is signed by Gloria Alvarez, “Secretary” and Jorge J. Ortiz, “Presidente.” (Plaintiff Exh. 138 (original Spanish version), p. 2) 99. The certificate of resolution is on behalf of Fiberglass Dura Mas, and the address given of Fiberglass Dura Mas at time of the certificate of resolution is Diez de Andino 111, San-turce, Puerto Rico. (Stipulated Fact No. 167; Plaintiff Exh. 138) 100. The certificate of resolution is stamped with the stamp of the previous name of the company, Fiberglass de Puerto Rico. (Plaintiff Exh. 138 (original Spanish version), p. 2) 101. As of 1986, Jorge J. Ortiz was authorized to sign checks for Fiberglass Dura Mas on Banco Popular account 170-001555. (Stipulated Fact No. 168) 102. All the checks from 2001-2003 produced by Banco Popular re account 170-001555 are signed by Jorge J. Ortiz. (Stipulated Fact No. 169; Plaintiff Exh. 142) 103. The periodic bank statements for account 170-001555 are addressed to Dura Fiberglass Dura Mas at 111 Calle Diez de Andino, San Juan, PR. (Plaintiff Exh. 142, e.g. p. BP 0019) 104. Jorge J. Ortiz signs checks for Fiberglass Dura Mas. (Stipulated Fact Nos. 170, 171; Distribuidora K-Ar-ibe 30(b)(6) Deposition excerpt (admitted into evidence by the grant of the Motion Designating Deposition excerpts), pp. 76-77 and attached Deposition Exhibit 11) 105. Jorge J. Ortiz signs checks for “cash” on checks issued on the account of Fiberglass Dura Mas. (Stipulated Fact No. 172; Plaintiff Exh. 142, e.g. p. BP 0230) 106. Jorge J. Ortiz has made payments to an attorney, Benjamin Ortiz, for Attorney Ortiz’ representation of Jorge J. Ortiz in this litigation, through checks issued on the account of Fiberglass Dura Mas and signed by Jorge J. Ortiz. (Stipulated Fact No. 173; Plaintiff Exh. 142, e.g. p. BP 0156) 107. Jorge J. Ortiz has made payment to Yoruba Figueroa for repairs to Jorge Ortiz’s traxcavator that was used at the J & G Site through check(s) issued on the account of Fiberglass Dura Mas and signed by Jorge J. Ortiz. (Stipulated Fact No. 174) 108. Jorge Ortiz wrote Yoruba Figueroa a check for $3,500.00 on the Dura Fiberglass Dura Mas Marketing Industries Account lending Figueroa the money for the purchase of a car for himself. (Stipulated Fact No. 175) 109. Jorge J. Ortiz signed checks for payment to Distribuidora K-aribe on checks issued on the account of Fiberglass Dura Mas. (Plaintiff Exh. 142; e.g., p. BP 0251) 110. Jorge J. Ortiz signed checks for payment to JG-24 on checks issued on the account of Fiberglass Dura Mas. (Plaintiff Exh. 142; e.g. p. BP 0250) 111. Fiberglass Dura Mas, Inc. a/k/a Dura Mas or Duramas does not have employees. (Stipulated Fact No. 187) 112. Credit card transactions for purchases by customers of Distribuido-ra K-Aribe or Dura Mas at the Ca-taño facility are processed through an account in the name of Dura Mas or Dura Mas Fiberglass, which is assigned the Merchant Account #231068. (Plaintiff Exhs. 94, 95, 135, 205, 208, 210, 213, 214; Stipulated Fact No. 146) 113. GM Group, Inc. handles credit card transactions involving customer purchases using credit cards at the Ca-taño facility utilizing Merchant Account # 231068. (Plaintiff Exh. 135) 114. Credit card sales drafts of merchant account number 231068 are deposited into Banco Popular checking account number 170-001555 which has the name Dura Mas Fiberglass or Dura Fiberglass Dura Mas, to which Jorge J. Ortiz is the sole signatory. Plaintiff Exh. 94, 95, 135, 205, 208, 210, 213, 214; Stipulated Fact No. 14. 115. The credit card impression machine used by Distribuidora K-Aribe (and by Dura Mas) a the Cataño facility impressed the name “Dura Mas” on credit card transaction forms. (Plaintiff Exh. 95) 116. Documents on file with GM Group, Inc. show that the credit card arrangement for Merchant Account #231068 was initiated with Fiberglass Dura Mas, and that the person representing Fiberglass Dura Mas was a Jorge Ortiz Romany who had an address at 111 Diez de Andino Street, San Juan, PR, and a Social Security Number of [ XXX-XX-XXXX ]. (Plaintiff Exh. 205, 208, 210, 213, 214) 117. Periodic statements on file with GM Group, Inc. include Merchant Statements for Merchant Account #231068, which is associated with Banco Popular Account # 170-001555. These statements are addressed to Distribuidora Caribe, P.O-Box 475, Cataño, PR 00963. (Plaintiff Exh. 222) 118. Periodic statements on file with the GM Group, Inc. also include statements associated with account # 170-001555, which are addressed to Dura Fiberglass Dura Mas Marketing Industries, 111 Calle Diez de Andino, San Juan, PR 00911-2118. (Plaintiff Exh. 223) 119. Jorge Ortiz continues to conduct business as Fiberglass Dura Mas or Dura Mas, including transactions with suppliers, advertisements in the phone book, sales of products, credit card transactions, and checking account transactions. Fiberglass Dura Mas is a proprietorship, and Jorge Ortiz is the proprietor of Fiberglass Dura Mas. Since there are no employees of Dura Mas, Jorge Ortiz is the sole operator of Dura Mas. Since he is the only person authorized to sign checks on the Dura Mas account, he is the sole beneficiary of Dura Mas. 4. Jorge Ortiz’ Companies are Commingled and Linked 120. Dura Mas is a trade name for some of the products of Distribuidora K-Aribe. (Stipulated Fact No. 141) 121. When invoices are received for products that Distribuidora K-Aribe buys, the invoices are sometimes addressed to Distribuidora K-Aribe. (Stipulated Fact No. 142) 122. When invoices are received for products that Distribuidora K-Aribe buys, the invoices are sometimes addressed to Dura Mas. (Stipulated Fact No. 143) 123. Sometimes checks that are made out to Dura Mas by customers are deposited into the Distribuidora K-Ar-ibe checking account. (Stipulated Fact No. 237; Plaintiff Exh. 97) 124. Customer credit card transactions at the Cataño facility, including those of Distribuidora K-Aribe, are processed through a credit card machine that uses the name “Dura Mas,” and the proceeds thereof are deposited into the Dura Fiberglass Dura Mas bank account. (Stipulated Fact Nos. 144-147) 125. At the direction of Jorge Ortiz, fiberglass products manufactured at JG-24 were taken to Distribuidora Karibe. (Alberto Mendez Deposition excerpt, p. 12, lines 20-25 through p. 13, lines 1-9) 126. Supplies and materials used, in the fiberglass manufacturing process at JG, such as resin, gelcoat, acetone and MEK Peroxide were supplied to JG-24 by Distribuidora Karibe. (Alberto Mendez Deposition excerpt, p. 68, lines 20-25 through p. 69, lines 1-4) 127. Alberto Mendez would bring about five or six drums of resin to the J & G Site weekly. (Stipulated Fact No. 113) 128. At the request and direction of Jorge Ortiz, Alberto Mendez went to the J & G Site several times during the period of the EPA removal action to get fiberglass product molds and took them to the Cataño facility. (Alberto Mendez Deposition excerpt, p. 83, lines 16-23) E. Facts Relating to United States’ Claims reJ&G Site 1. Ownership of the J & G Site 129. Defendant Jorge Ortiz is a current owner of the J & G Site and has been an owner of that real property since 1988. Defendant Jorge Ortiz has been the owner, along with Gloria Alvarez Nieves, who is described in the recorded deed as his wife, since 1988. (Stipulated Fact No. 234; Plaintiff Exhs. 75 and 76) 2. December 3, 1997 Inspection — J & G Site 130. On December 3, 1997, EPA inspectors Francisco Claudio Rios and Eduardo Gonzalez visited the J & G Site to conduct a preliminary inspection. During the December 3, 1997 inspection at the J & G Site, EPA inspector Francisco Claudio Rios spoke with various employees at the Site to obtain preliminary information about the J & G Site operations and ownership. None of the employees was willing to provide information as to the person in charge. (Francisco Claudio Direct testimony; Plaintiff Exh. 185) 131. During the December 3, 1997 inspection at the J & G Site, EPA inspectors observed: a. Many 55-gallon drums haphazardly stored throughout the J & G Site and dumped into areas of vegetation at the periphery of the property. Many of the drums were in severely deteriorated condition including being rusted, corroded, dented, collapsed, bulged, inflated, and/or leaking and stained. Some of these drums were labeled “Acetone” and “Resin Solution.” Many of these deteriorated drums were exposed to the elements. b. Many 55-gallon drums dumped into or near two sinkholes at the Site. The drums dumped into one sinkhole were in various stages of deterioration including being rusted, severely corroded, dented, collapsed, bulged and/or leaking and stained. Some of these drums were labeled “Acetone” or “Resin Solution.” Approximately 10 drums were in close proximity (about 10 meters) to the other sinkhole at the Site. c. Several areas of dark stained soils at the Site, including areas of staining near or next to deteriorated, leaking or stained drums, some of which were labeled “Acetone” or “Resin Solution.” Stained soils were also observed in the areas of the manufacturing operations. d. Workers applying fiberglass materials in an open structure. e. An electrical box at the Site located in a wood and aluminum structure surrounding pig houses where several feed bags were stored. (Francisco Claudio Direct testimony; Eduardo Gonzalez Direct testimony; Plaintiff Exhs. 185, 189 (including photo captions)) 132. During the December 3, 1997 inspection, the EPA inspectors also identified a strong odor of solvents. (Francisco Claudio Direct testimony; Eduardo Gonzalez Direct testimony; Plaintiffs Exh. 185) 133. EPA inspector Eduardo Gonzalez testified that he saw drums with flammable material labels. Some of the drums were bulging, as a result of expansion of volatile organic substances within being left out in the heat. He handled the drums carefully because a spark might cause an explosion. (Eduardo Gonzalez Direct testimony) 134. EPA inspector Francisco Claudio testified that he thought the electrical wiring presented a hazard because it was haphazard, there were vapors, and the ventilation was poor. (Francisco Claudio Direct testimony; see also Eduardo Gonzalez Direct testimony; Plaintiff Exh. 189, p. 189-23 (photo 45 caption)) 135. The EPA inspectors observed that there were no safety notices and no safety equipment, such as fire extinguishers. (Francisco Claudio Direct testimony) 136. EPA inspector Eduardo Gonzalez talked to some of the workers and asked it they knew they were working with hazardous chemicals and they were very surprised at what he was telling them. They had no training' no knowledge about the hazards. They did not have any protection equipment or clothes to deal with the hazards; they were just operating with their bare hands and no air respirators. (Eduardo Gonzalez Direct testimony) 3. February 1998 Initial Sampling and Inspection 137. Between the December 3, 1997 inspection and January 28, 1998, EPA made various attempts to obtain voluntary access to the J & G Site to undertake sampling and further inspection activities. These efforts were unsuccessful. (Plaintiff Exh. 12, ¶¶ 10-19; Stipulated Fact Nos. 15,16) 138. On January 28, 1998, the United States sought and received an Ex Parte Warrant for Entry for the purposes of conducting an inventory of the hazardous substances stored at the J & G Site and sampling activities thereon, which was executed during the week of February 3, 1998. (Plaintiff Exh. 12, ¶¶ 19-20; Francisco Claudio Direct testimony) 139. EPA inspected the J & G Site during the week of February 3, 1998, and took samples of soils, surface water, and wastes at the Site. EPA also conducted an inventory of containers that were visible at the manufacturing area at the J & G Site in February 1998, which included some partially buried drums, as well as surficial drums and containers. Some of the drums and containers inventoried were empty; others were not empty. Stained soils were also observed. (Plaintiff Exh. 6, pp. 5-6; Stipulated Fact No. 17) 140. The analytical results of the February 1998 samples contained in a report dated March 12, 1998, regarding the Site Assessment at the J & G Site, showed that some samples taken at the J & G Site contained hazardous substances, including styrene and acetone. (Plaintiff Exh. 6, pp. 6-7) 141. During the February 1998 inspection, EPA inspectors also observed that the Site had no storm water runoff control, causing storm water to flow through waste piles where it would leach out and ultimately flow into sinkhole areas that are a groundwater recharge area. (Plaintiff Exh. 7, p. 5) 142. As a result of the February 1998 inspection, EPA determined that additional sampling and investigation activities at the J & G Site were necessary to assess the extent of the contamination at the Site and to determine whether a removal action under CERCLA would be required. (Plaintiff Exh. 7, p. 6) 4. Access 143. After the February 1998 inspection, EPA again made efforts to obtain voluntary access to the J & G site for investigation and sampling activities. These efforts included returning to the J & G Site to seek entry and making numerous phone calls and leaving phone messages for Jorge Ortiz which were not returned. Such efforts were made on various dates, including in June of 1998 and October of 1998. (Plaintiff Exh. 12, ¶¶ 24-27) 144. For instance, EPA On Scene Coordinator Michael Ferriola and other EPA representatives and contractors attempted to visit the J & G Site in late June 1998. The iron gate across the entrance road was locked at the time of EPA arrival. After about 15 minutes, a JG employee was found leaving the Site, and EPA asked him for permission to enter. He denied access and locked the gate upon departure. A second employee, working on a barbed wire fence, was also asked for permission to enter. He stated that he would ask the person in charge for permission to admit them. They waited another 15-20 minutes, but he did not return. OSC Michael Ferriola and other EPA representatives also attempted to visit the J & G Site in October 1998, but once again the gate was locked. (Michael Ferriola Direct testimony, Francisco Claudio Direct testimony; Plaintiff Exh. 8) 145. Following these efforts, EPA issued an Administrative Order Directing Compliance With Request For Access to JG-24, directing JG-24 to comply with EPA’s request for access. The Administrative Order avers that Jorge Ortiz is the president, owner and/or manager of JG-24. The Administrative Order was sent by certified mail, with a transmittal letter of February 23, 1999, addressed to Mr. Jorge Ortiz (or) Manager (or) President, J & G 24 Corporation, at both the J & G Site and the Cataño facility. While the address for the J & G Site was incorrect insofar as it referred to Vega Baja instead of Vega Alta, the address for the Cataño facility was correct. (Stipulated Fact No. 18; Plaintiff Exhs. 12, 72) 146. On March 3, 1999 EPA inspector Francisco Claudio Rios hand delivered the Administrative Order Directing Compliance With Request for Access, with the February 23, 1999 transmittal letter, to Rodes [Rothes] Gonzalez, an employee at the Cataño facility, who signed for the letter. (Francisco Claudio Direct testimony; Plaintiff Exhibits 12, 72, 73; Stipulated Fact No. 13) 147. On March 11, 1999, copies of the Administrative Order were also left at the front gate to the J & G Site and inserted into an open window at Jorge Ortiz’ residence in Santurce, Puerto Rico. (Francisco Claudio Direct testimony; Plaintiff Exhibits 12, 72, 74) 148. JG-24 failed to comply with, or even respond to, EPA’s Administrative Order Directing Compliance With Request For Access. (Francisco Claudio Direct testimony) 149. The Administrative Order became effective on March 11, six (6) business days after it was received and signed for by Jorge Ortiz’ employee Rodes Gonzalez at the Cataño facility. (Plaintiff Exh. 12, p. 9) 150. Since EPA did not obtain access through the Administrative Order, the United States sought and obtained an access warrant from the United States District Court for additional sampling and investigation activities, which was sought on April 13, 1999 and executed with the assistance of the Marshal’s Service on April 14, 1999. (Plaintiff Exh. 14, p. 1; Stipulated Fact No. 20; Michael Ferriola Direct testimony) 151. There were 34 days of noncompliance with the Administrative Order between its effective date, March 11, 1999, and the date EPA was able to access the J & G Site for the additional sampling and investigation activities on April 14,1999. 152. Obtaining access without delay was important for EPA to be able to ascertain whether there was a release or threat of release of hazardous substances that would impact public health or the environment. (Michael Ferriola Direct testimony) 5. April 1999 Sampling Investigation 153. Pursuant to the second warrant for access to the J & G Site, which was executed between April 14 and April 17, 1999, EPA conducted additional drum, soil, and water sampling at the J & G Site. (Stipulated Fact No. 21) a. Site Conditions 154. There were several structures at the J & G Site in the area where the fiberglass products were manufactured, some of them roofed and all of them open to the environment on the sides. Some of the structures in the manufacturing area, including open air sheds, were in poor condition, with roof pieces falling down. (Michael Ferriola Direct testimony; Plaintiff Exh. 13, p. 7; Plaintiff Exh. 14 (also contained in the Administrative Record, Plaintiff Exh. 134, at tab 2), pp. 2,3; Plaintiff Exh. 191, including pp. 191-3, -4, -5, -48) 155. Raw material drums, including those with hazardous labels, were haphazardly stored. Deteriorated used drums, many leaking, were stored or disposed of in piles or lying on their side. (Plaintiff Exh. 14, p. 4, Plaintiff Exh. 191, Plaintiff Exh. 15, p. 2) 156. There was one section of the pole barn sheds in the manufacturing area at the Site that had previously been in a fire, as evidenced by charred material on the roof. (Michael Ferriola Direct testimony; Plaintiff Exh. 15, p. 2) b. Site Practices 157. During the April 1999 EPA investigation and sampling activities, JG-24 employees were using the Site to produce fiberglass products such as swimming pools, water tanks, boats, and carriages. (Stipulated Fact No. 22) 158. During manufacturing of fiberglass products, the workers were spraying styrene resins onto the fiberglass. JG-24 employees would punch holes in drums of resin to put the hoses to the sprayers in. The employees would cut into the drum instead of using the bungholes that came with the drum. (Michael Mercado Direct testimony; Michael Ferriola Direct testimony) 159. EPA employee Michael Mercado observed workers in April 1999, spraying a blue-colored spray inside of the pools being manufactured at the site without protective equipment (Michael Mercado Direct testimony) 160. Employees of JG-24 sometimes did not use protective gear, like face masks, when performing fiberglass manufacturing work because they did not like to use them. (Alberto Mendez Deposition excerpt, p. 142, lines 2-18) c. Chemicals Used 161. During the April 1999 EPA investigation and sampling activities, JG-24 was using acetone, styrene resins, and methyl ethyl ketone (MEK) peroxide in its operations in the manufacturing area at the J & G Site. The MEK peroxide was a Cook Composites and Polymers product that came in a solution of dimethyl phthalate. (Plaintiff Exh. 13, pp. 1, 49; Plaintiff Exh. 191, pp. 191-16, -28, -29, -36, - 50, Plaintiff Exh. 14, p. 2; Plaintiff Exh. 33, item 33-B012, p. 1; Michael Ferriola Direct testimony). 162. EPA consulted Material Safety Data Sheets (“MSDSs”) and National Institute for Occupational Safety and . Health (“NIOSH”) information sheets to determine what kinds of hazards were associated with the materials JG-24 was using in its fiberglass product manufacturing operations, e.g., acetone, styrene resins, and MEK peroxide. (Michael Ferriola Direct testimony; Plaintiff Exhs. 23-29, 31-32) 163. In addition to the MSDSs reviewed by EPA in April 1999, MSDSs later produced by Defendants’ former employee Betsy Ortiz and Defendants’ expert witness Neftalí García also provide information on the hazards associated with acetone, styrene resins, and MEK peroxide solutions. The MSDSs indicate that the materials pose a fire or explosion hazard, as well as an environmental hazard. (Plaintiff Exhs. 33, 34) 164. The Material Safety Data Sheet for acetone says that acetone is “Extremely Flammable. Vapors are heavier than air. Vapors may travel across the ground and reach remote ignition sources causing a flashback fire danger.” (Plaintiff Exh. 33, item 33-B09, p. 1) 165. The Material Safety Data Sheet for MEK peroxide solution says “Keep containers tightly closed and isolate from heat, electrical equipment, sparks and flame. Never use welding or cutting torch on or near drum (even empty) because product (even just residue) can ignite explosively.” (Plaintiff Exh. 33, item 33-B012, p. 3) 166. The Material Safety Data Sheet for the Polyester Resin Solution in Styrene “17” says “Flammable in the presence of open flames, sparks, or heat. Can react with oxidizing materials. Explosive in the form of vapor when exposed to heat or flame.” (Plaintiff Exh. 33, item 33-B016, p. 2) d. Releases and Threatened Releases 167. During the April 1999 EPA investigation and sampling activities, EPA observed that there were hundreds of used drums at the Site in various states of deterioration scattered throughout the Site, many of which were lying on their sides. Some of them had waste materials leaking onto the ground. Many of these drums were open, rusted, crushed, or otherwise not in good condition. Many had holes punched in them. Each of the drum samples were taken from such waste drums. (Michael Ferriola Direct testimony; Plaintiff Exh. 191 (photos); Plaintiff Exh. 13, pp. 2-8, 24-30; Plaintiff Exh. 14, p. 6; Plaintiff Exh. 17, p. 1) 168. The drums with waste materials in them were not marked with the date on which each had begun being stored or accumulated at the J & G Site. (Michael Ferriola Direct testimony) 169. In April 1999, EPA also observed stained soils at various locations at the J & G Site, and several of the soil samples were taken at those locations. (Plaintiff Exh. 13, pp. 31-38; Plaintiff Exh. 14, p. 4) 170. There is a sinkhole at the manufacturing area at the J & G Site that is located in the northeastern part of the manufacturing area. The sinkhole located in the northeastern part of the manufacturing area is about 40 feet deep. (Stipulated Facts No. 12, 23; Mike Ferriola Direct testimony) 171. In April 1999, there were many drums that had been pushed into the main sinkhole. The drums were piled haphazardly on top of each other and resembled a wall of drums. (Mike Ferriola Direct testimony; Plaintiff Exh. 191 (photos), pp. 191— 11, -12) 172. There were no erosion or stormwa-ter management controls in the manufacturing area. Storm water runoff would flow through waste piles and transport waste material on the ground into the sinkhole. Sinkholes are groundwater recharge areas. (Plaintiff Exh. 13, p. 1; Plaintiff Exh. 14, p. 3; Plaintiff Exh. 15 (also contained in the Administrative Record, Plaintiff Exh. 134, at tab 15), pp. 3,4; Mike Ferriola Direct testimony) 173. During the April 1999 EPA investigation and sampling activities, there were strong chemical odors of solvents and resins at the J & G Site. (Plaintiff Exh. 14, p. 5; Michael Fer-riola Direct testimony; Michael Mercado Direct testimony) 174. EPA employees Michael Ferriola and Michael Mercado also testified that they got headaches from breathing the chemicals in the air at the Site. (Michael Ferriola Direct testimony; Michael Mercado Direct testimony) 175. In April 1999, neighbors to the North complained to EPA that there were chemical odors from the J & G Site, depending upon the wind direction. (Plaintiff Exh. 14, p. 5, and Plaintiff Exh. 15, p. 3; Michael Mercado Direct testimony) 176. The neighbors to the North of the J & G Site lived about 1/4 to 1/2 mile away from the J & G Site (in a direct line). (Michael Mercado Redirect testimony; Michael Ferriola testimony) e. Sample Results — Superfund Support Team Sampling Report 177. The results of the April 1999 EPA sampling activities at the J & G Site were reported in the Superfund Contract Support Team Sampling Report for the April 12-19, 1999 sampling. (Stipulated Fact No. 24; Plaintiff Exh. 13 (text and some appendices of Plaintiff Exh. 13 are also contained in the Administrative Record, Plaintiff Exh. 134, at tab 8)) 178. The drums sampled during the April 1999 sampling event contained RCRA hazardous waste because the samples had flash points of less than 140 degrees Fahrenheit, which establishes that the waste is a RCRA hazardous waste for the characteristic of ignitability. (Mike Ferriola Direct testimony; Plaintiff Exh. 13, p. 10 and Appendix C pp. EPA 00772-EPA 00776) 179. CERCLA hazardous substances, including acetone and styrene, were found in drum samples, including some with high levels. Some of the drum samples taken in April 1999 had over 180,000 mg/kg (parts per million) of styrene. One of the drum samples taken in April 1999 had 4100 mg/kg (parts per million) of acetone. (Plaintiff Exh. 13, pp. 14-16 (Table 3); Michael Ferriola Direct testimony; Michael Mercado Direct testimony) 180. Dimethyl phthalate and arsenic are also CERCLA hazardous substances, as well as acetone, styrene, and MEK peroxide. (40 C.F.R. § 302.4; Michael Mercado Direct testimony; 40 C.F.R. § 302.4) 181. CERCLA hazardous substances, including styrene, arsenic, and dimeth-yl phthalate, were found in soil samples. One of the soil samples taken in April 1999 had 48,000,000 ug/L (parts per billion) of styrene, and one of the soil samples taken in April 1999 had 1,400,000 ug/L (parts per billion) of styrene. (Plaintiff Exh. 13, pp. 17-19 (Table 4); Michael Mercado Direct testimony; Michael Ferriola Direct testimony) 182. As is standard operating procedure, EPA did not take its soil samples from the top of the ground surface. Rather, the EPA sampling personnel scraped off the top layer of soil or debris and took the soil samples from the soils beneath the surface. (Plaintiff Exh.13, Appendix A (QAPP)’s Appendix I (soil sampling procedures), p. 6; Michael Mercado Cross testimony). 183. Defendants’ expert Neftali Garcia was not present when EPA took the soil samples. Defendants’ expert Neftali Garcia’s postulation that the high styrene levels found in some of the “soil samples” were the result of sampling gelled material that had leaked out of the drum onto the ground surface, rather than actual soils, has no basis and is erroneous. (Neftali Garcia Direct testimony) 184. Many of the soil samples taken in April 1999 had dimethyl phthalate in them. Dimethyl phthalate was a major ingredient in the MEK peroxide solution used at the J & G Site. No dimethyl phthalate was present in the soil background sample. (Plaintiff Exh. 13, pp. 10, 17-19, 49; Plaintiff Exh. 33, item 33-B018, p. 1; Michael Mercado Direct testimony) 185. Paints sometimes include metals for pigmentation. (Michael Mercado Direct testimony) 186. While EPA decided that one background soil sample was sufficient for the April 1999 soil sampling at the J & G Site, EPA did not attribute inorganic compounds, such as arsenic or other metallic inorganic compounds, found in the samples of soils at the Site to the JG-24 operations at the Site unless the levels found were at least 3 times the level found in the soil background sample. (Plaintiff Exh. 13, p. 10; Michael Mercado Cross testimony) 187. The National Contingency Plan (NCP) does not specify the number of background soil samples to be taken. EPA’s decision that one background soil sample was sufficient for the April 1999 soil sampling at the J & G Site was not inconsistent with the National Contingency Plan. (40 C.F.R. Part 300) 188. Several of the soil samples had arsenic levels greater than 3 times the level in the soil background sample. One of the locations where a soil sample that had high levels of arsenic was taken was visibly stained with pigments from the JG-24 fiberglass product manufacturing operations. (Michael Mercado Direct testimony; Plaintiff Exh. 13, pp. 10, 17-19, 38) f. Soil Boring Results 189. In addition to investigating the lateral extent of contamination at the Site by taking drum and soil samples at various locations in the manufacturing area, EPA also undertook some investigation of the vertical extent of contamination using geo-probe techniques in April 1999. (Plaintiff Exh. 16 and 17) 190. EPA, through its Weston contractor, collected samples from soils in the sinkhole areas at the J & G Site using geoprobe coring rods and monitored the air in the boreholes from which the cores were extracted. This work is described in a trip report dated April 28, 1999, regarding “Soil Sampling at the J & G 24 Corporation site,” and in an Analytical Report, J & G Corporation Site, dated May 1999, both prepared by Weston for EPA. (Plaintiff Exh. 16 and 17; Stipulated Fact No. 25) 191. Laboratory results of soil core samples showed that acetone was detected in soils taken at 11.5 feet deep and 6 feet deep. Using field screening devices, organic vapors were also detected in the air in the boreholes from which cores were extracted in the main sinkhole at various depths. The organic vapors detected included acetone and styrene. (Plaintiff Exh. 16, pp. 00013 and 00017; Plaintiff Exh. 17, Table 1 (pp. EPA 01423-EPA 01424)) g. Attempt to Sample Local Groundwater 192. In addition, in April 1999, EPA also tried to take samples from local groundwater wells, but found out from local neighbors that almost all of the neighbors obtained their water from PRASA (Puerto Rico Water Authority) and not from local groundwater, except for a tree nursery whose well was not functional at the time. (Plaintiff Exh. 14, p. 5; Michael Mercado Direct testimony) 193. Based on the facts stated above, there were releases and threatened releases of CERCLA hazardous substances into the environment at the J & G Site. 6. Decision to Conduct Removal Action 194. After evaluation of the results of the April 1999 sampling and investigatory activities, EPA determined that there were releases and threats of releases of CERCLA hazardous substances at and from the J & G Site, including a leaking of hazardous substances into the soil with the potential to leach into the underlying groundwater aquifer through the on-site sinkhole, airborne releases of organic solvents containing hazardous substances, and a fire and explosion hazard. Therefore, EPA determined that a removal action at the Site was appropriate, including the excavation, characterization, and off-site transportation and disposal of the drums and underlying soils, as documented in the Action Memorandum for the removal action which was approved at EPA on September 30, 1999. (Plaintiff Exh. 15 (also contained in the Administrative Record, Plaintiff Exh. 134, at tab 15)) 195. As shown in the Action Memorandum, EPA considered the relevant factors specified in the removal action portion of the National Contin- ■ gency Plan, 40 C.F.R. § 300.415(b)(2). EPA determined that seven (7) of the factors referred to in the NCP were applicable to the J & G Site based on facts summarized in the Action Memorandum, and thus that a removal action was appropriate. (Plaintiff Exh. 15, pp. 7-9; Michael Ferriola Direct testimony) 196. As set forth in the Action Memorandum, EPA selected a removal action that included the excavation and characterization of the drums at the Site and the off-Site transportation and disposal of hazardous wastes and substances. Removal of drums, barrels, tanks, or other bulk containers that contain or may contain hazardous substances is a standard type of removal action under the NCP, 40 C.F.R. § 300.415(e)(7). (Plaintiff Exh. 15, pp. 10-11) 197. Bioremediation, referred to by Defendants’ expert Neftalí Garcia, is not listed in the list of standard types of removal actions under the NCP, 40 C.F.R. § 300.415(e). 198. Defendants’ expert Neftalí Garcia said that, under certain circumstances, releases of acetone or styrene can cause a fire or explosion hazard. He agreed that, under certain conditions, even an empty container of acetone with some residue in it could explode. (Neftalí Garcia Cross Testimony) 199. Causing a fire or explosion hazard can imperil people and the environment. (Stipulated Fact No. 34) 200. Defendants’ expert Neftalí Garcia opined that there was a low risk of fire at the J & G Site because it was not a “confined area.” The Material Safety Data Sheets for acetone, polyester resin solution in styrene, and MEK peroxide state that these chemicals pose a threat of fire and explosion. They do not state that these chemicals only pose a threat of fire or explosion in “confined areas.” Defendants’ expert Neftalí Garcia’s opinion is also contradicted by the evidence that there had already been a fire in a portion of the metal pole barn sheds at the J & G Site before EPA’s sampling investigation in April 1999. (Neftali Garcia Direct testimony; Plaintiff Exh. 33, items B09, B012, and B016; Michael Fer-riola Direct testimony) 201. Based on the facts set forth above, EPA’s determination to conduct a removal action at the J & G Site, including the excavation and characterization of the drums at the Site and the off-Site transportation and disposal of hazardous wastes and substances, was not arbitrary or capricious and was not inconsistent with the NCP. 7. March 2000 Overñight 202. In March 2000, in order to determine if conditions had changed at the J & G Site, EPA OSC Michael Ferriola arranged for an overflight because of the problems that had been previously experienced in obtaining access to the Site. (Michael Ferriola Direct testimony; Plaintiff Exh. 192) 203. During the March 2000 fly over, EPA OSC Michael Ferriola observed that there were many more drums stored at the J & G Site than had been observed during the April 1999 investigation